FLORIDA SUPREME COURT

Judicial Ethics Advisory Committee

Opinion Number: 2010-34
Date of Issue: October 22, 2010

ISSUE

Can a judge write a letter to another judge to advocate a drug program or testify before that other judge to explain the drug program that can be used as an alternative to incarceration, in a case involving a relative of the requesting judges' friend?

ANSWER: No.

FACTS

The inquiring judge's friend grandson has a criminal case pending before another judge in the same jurisdiction.  The inquiring judge asks if it would be proper for the judge to either write a letter to the presiding judge advocating a drug program which may be used as an alternative to incarceration or, if subpoenaed, appear before the presiding judge to explain the program.

DISCUSSION

For purposes of this analysis, the committee assumes that the intended letter involved herein would not be delivered to the presiding judge, without first submitting it to the parties and attorneys.  Otherwise, such a communication would be prohibited under Canon 3B(7) as an ex parte communication. In re Holloway, 832 So. 2d 716 (Fla. 2002).

Canon 2 in relevant part provides:

A. A judge shall act at all times in     a manner that promotes public confidence in the integrity and impartiality of the judiciary.

B. A judge shall not allow family, social, political or other relationships to influence the judge's judicial conduct or judgment.  A judge shall not lend the prestige of judicial office to advance the private interests of...others; nor shall a judge convey or permit others to convey the impression that they are in a special position to influence the judge.  A judge shall not testify voluntarily as a character witness.

Canon 3B(9) also provides that a judge shall not, while a proceeding is pending or impending in any court, make any public comment that might reasonably be expected to affect its outcome or impair its fairness..." (emphasis added). The Commentary to Canon 2A alerts that judges must "accept restrictions on the judge's conduct..." That Commentary design-nates the prohibition contained in 3B(9) as an example of the restriction judges must accept on judicial speech, in order to ensure maintaining the integrity, impartiality and indepen-dence of the judiciary.  Additionally, the Commentary to Canon 2B restates the requirement that a judge must avoid lending the prestige of judicial office for the advancement of the private interest of others. Addi-tionally, that Commentary provides that "a judge must not initiate the communication of information to a sentencing judge..."  JEAC OP. 97-3See also In re Fogan, 646 So. 2d 191(Fla. 1994).

The inquiring judge cannot write a letter on behalf of the friend's grandson to advocate the drug program as an alternative to incarcera-tion.  To do so would violate Canons 2 and 3 of the Code of Judicial Conduct by permitting the judge's social or other relationship to influence the judge's conduct, by making a public comment while a proceeding is pending in court that is made intending, if not expecting, to affect the proceeding's outcome and by lending the prestige of the inquirer's judicial office for the advancement of the private interests of the inquiring judge's friend's grandson.  Additionally, this conduct would impair the confidence of the public in the integrity of the judicial system and in the inquiring judge and would be a violation of Canon 1.  In re Maloney, 916 So. 2d 786 (Fla. 2005). In Maloney, a judge was reprimanded for contacting a police department and directing that a family friend's son be released  to the custody of his father, after an arrest for driving under the influence.  The Florida Supreme Court found that such conduct had violated Canon 1 and Canon 2A and 2B. Likewise in In re Holloway, 832 So. 2d 716 (Fla. 2002), the Supreme Court found clear and convincing evidence to support a violation of the code for using the prestige of the judicial office by a judge who requested a scheduling favor for a family member from another judge. Additionally, the Supreme Court found that, in engaging in an ex parte communi-cation to another judge on a pending case, Judge Holloway A...knew her actions were designed to assist Robin Adair's (Judge Holloway's friend) legal position. There,  the Supreme Court found such conduct to constitute serious misconduct deserv-ing of a suspension, rather than the recommended reprimand. Thus, the inquiring judge's conduct in writing the letter would be a violation of Canons 1, 2A, 2B and 3B(9).

The second part of the inquiry asks whether the judge could appear and testify before the court, if subpoenaed, to explain the program to the presiding judge.  Canon 2B prohibits a judge from testifying voluntarily as a character witness.  However, this Canon permits a judge to testify as a character witness when properly subpoenaed.  However, the commentary directs judges to discourage a party from doing so, unless in unusual circumstances where the demands of justice require it.  Canon 3B(9) only allows a judge to make public comments on a pending matter, in "proceedings in which the judge is a litigant in a personal capacity."  Lastly, a judge is allowed to appear at a public hearing before an executive or legislative body only in matters concerning the law, the legal system or the administration of justice.  Canon 4C.

The conduct contemplated by the inquiry seeks to place the judge as a witness to explain a drug treatment program to the presiding judge.  There appear to be no unusual circum-stances, like an absence of other qualified witnesses, that would make the appearance of the judge necessary to explain the drug program.  Therefore, the demands of justice do not require the judge's appearance.  The committee assumes that there are other witnesses that the defendant could summon to testify and explain the program to the presiding judge.  The only other reason why a person might want to use the testimony of this judge then would be to use the prestige of the judicial office to advocate the use of this program and  to be able to use the position of this judge as a colleague to further the defendant's cause and not be sentenced to jail.

The committee is of the opinion that this contemplated conduct will violate Canons 2A and B, 3B(9) and 4A in that the testimony on behalf of the judge's friend's grandson will lend the prestige of the judicial office to advance the private interests of others; the appearance as a witness by the judge will erode public confidence in the integrity and impartiality of the judiciary; will be perceived as testimony seeking to affect the out-come of the sentencing proceeding; will cast doubt on the judge's capacity to act impartially as a judge; and undermine the judge's independence, integrity or impartially. Therefore, the inquiring judge should not appear as a witness before the presiding judge.

REFERENCES

In re Maloney, 916 So. 2d 786 (Fla. 2005); In re Holloway, 832 So. 2d 716 (Fla. 2002);  In re Fogan, 646 So. 2d 191(Fla. 1994).

Fla. Code of Jud. Conduct, Canons 1, 2A, 2B, 3B(7), 3B(9), 4A, 4C

Fla. JEAC OP. 97-3

_____________

The Judicial Ethics Advisory Committee is expressly charged with rendering advisory opinions interpreting the application of the Code of Judicial Conduct to specific circumstances confronting or affecting a judge or judicial candidate.

Its opinions are advisory to the inquiring party, to the Judicial Qualifications Commission and the judiciary at large. Conduct that is consistent with an advisory opinion issued by the Committee may be evidence of good faith on the part of the judge, but the Judicial Qualifications Commission is not bound by the interpretive opinions by the Committee. See Petition of the Committee on Standards of Conduct Governing Judges, 698 So. 2d 834 (Fla. 1997). However, in reviewing the recommendations of the Judicial Qualifications Commission for discipline, the Florida Supreme Court will consider conduct in accordance with a Committee opinion as evidence of good faith. See Id.

The opinions of this Committee express no view on whether any proposed conduct of an inquiring judge is consistent with the substantive law which governs any proceeding over which the inquiring judge may preside.  This Committee only has authority to interpret the Code of Judicial Conduct, and therefore its opinions deal only with the issue of whether the proposed conduct violates a provision of that Code.

For further information, contact: Judge Kerry I. Evander, Chair, Judicial Ethics Advisory Committee, Fifth District Court of Appeal, 300 South Beach Street, Daytona Beach, Florida  32114-5002.

Participating Members:
Judge Roberto Arias, Judge Robert T. Benton II, Dean Bunch, Esquire, Judge Lisa Davidson, Judge Kerry I. Evander, Judge Jonathan D. Gerber, Judge T. Michael Jones, Patricia E. Lowry, Esquire, Judge José Rodriguez, Judge C. McFerrin Smith III, Judge Richard R. Townsend, Judge Dorothy Vaccaro.


Copies furnished to:
Justice Peggy Quince
Thomas D. Hall, Clerk of Supreme Court
All Committee Members
Executive Director of the J.Q.C.
Office of the State Courts Administrator
Inquiring Judge (Name of inquiring judge deleted from this copy)